People v. Kaminiski

• Decision Date: 05 May 1989
• Docket Number: AP-9
• Citation: 143 Misc.2d 1089,542 N.Y.S.2d 923
• Parties: The PEOPLE of the State of New York v. Lee Roy KAMINISKI, Defendant
• Court: New York City Court

Page 923

542 N.Y.S.2d 923

143 Misc.2d 1089

The PEOPLE of the State of New York v. Lee Roy KAMINISKI, Defendant.

Criminal Court of the City of New York New York County, Part AP-9.

May 5, 1989.

Isabelle A. Kirshner, Epstein and Kirshner, New York City, for defendant.

Robert M. Morgenthau, Dist. Atty., New York County, New York City (Kevin J. Suttlehan, Asst. Dist. Atty. of counsel), for the People.

HAROLD BEELER, Judge.

Defendant herein, charged with Driving While Intoxicated in violation of subdivisions (2) and (3) of Vehicle and Traffic Law Section 1192, moves as part of an omnibus motion for dismissal of the accusatory instrument on the ground that it is facially insufficient pursuant to CPL Sections 170.30, 170.35 and 100.40.

The principal questions for resolution on this motion to dismiss are twofold: (1) whether the CPL Section 60.50 "confession corroboration rule" applies to the legal sufficiency standards for misdemeanor informations set forth in CPL Section 100.40(1)(c); and (2) assuming the application of CPL Section 60.50, whether the information at bar satisfies the corroboration requirements set forth therein.

The factual portion of the information at bar reads, in pertinent part, as follows: "On January 18, 1989, at about 2245 hours [10:45 P.M.] at W. 203rd Street and 10th Avenue, in the County.... of New York,.... deponent [police officer] observed defendant standing near a 1982 Mercury. Deponent further states that she is informed by defendant that defendant was operating the above-mentioned car when a tow truck had collided with defendant's car. Deponent observed that the defendant had an unsteady and abrupt manner, had watery and bloodshot eyes and was talking incessantly. Deponent is further informed by defendant that defendant drank 2 glasses of champagne before leaving his office. Deponent further states that [s]he is informed by P.O. Michael Shea ... that informant administered a test to determine the defendant's blood alcohol content and such test indicated ... a blood alcohol content of .14 of one percentum ..."

CPL Sections 170.30(1)(a) and 170.35(1)(a) provide for the dismissal of a misdemeanor complaint or information when the instrument is not sufficient on its face pursuant to the requirements of CPL Section 100.40. To meet the sufficiency requirements of CPL Section 100.40, an information must contain, inter alia, a factual portion which, alone or in combination with any supporting depositions, provides non-hearsay factual allegations "establish[ing], if true, every element of the offense charged and the defendant's commission thereof." (CPL Section 100.40(1)(c); see also, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71).

In substance, defendant contends that the failure of the instrument to adequately allege the necessary element of his "operation" of the vehicle renders the instrument fatally defective. The People, in their responding papers, correctly concede that "operation" is an essential element of Driving While Intoxicated (see, People v. Thornton, 130 A.D.2d 78, 80, 517 N.Y.S.2d 807; and People v. Saplin, 122 A.D.2d 498, 499, 505 N.Y.S.2d 460), but maintain that defendant's having admitted operating the vehicle, as alleged in the information, is sufficient to satisfy the facial sufficiency requirements for this element of the offense charged. In this regard, the People construe defendant's facial insufficiency attack as directed toward the hearsay nature of defendant's alleged admission, and correctly point out that said admission nonetheless satisfies the requirements for "non-hearsay" allegations contained in CPL Section 100.40(1)(c). (Matter of Rodney J., 108 A.D.2d 307, 311, 489 N.Y.S.2d 160; People v. Alvarez, 141 Misc.2d 686, 534 N.Y.S.2d 90, 92-93; see also, Richardson, Evidence, Sections 209, 231 and 540 (10th Edition)).

Certain questions remain, however, though not directly addressed by either party, as to whether an information, to be facially sufficient, must comply with the mandate of CPL Section 60.50 requiring that there be proof, independent of any admissions by a defendant, that the crime charged was actually committed; and, if it is found that CPL Section 60.50 does apply in this context, whether the information at bar meets the corroboration standards set forth therein.

Under the "confession corroboration rule" (CPL Section 60.50), "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." (CPL Section 60.50). Although by its terms CPL Section 60.50 precludes only "convictions" founded solely on a defendant's uncorroborated admissions, the corroboration requirement contained therein has been extended to the accusatory (i.e., indictment) stage of felony prosecutions (see, CPL Section 190.65(1); People v. Esposito, 121 A.D.2d 561, 503 N.Y.S.2d 611; People v. Danzy, 104 A.D.2d 949, 480 N.Y.S.2d 567); to Family Court juvenile delinquency petitions (see, Rodney J., supra, 108 A.D.2d at 313, 489 N.Y.S.2d 160), and, in at least one recently reported decision, to misdemeanor informations as well (see, Alvarez, supra ).

In Alvarez, the court granted a defendant's motion to dismiss an information for facial insufficiency where the accusatory instrument "fail[ed] to allege any relevant facts outside of the defendant's statements that corroborate the commission of a crime." (Id., at 691, 534 N.Y.S.2d at 94). This court agrees with the conclusion reached in Alvarez that the rationale underlying the "confession corroboration rule" as applied to convictions (CPL Section 60.50), indictments, (CPL Section 190.65(1)), and Family Court juvenile delinquency petitions (Rodney J., supra), should apply with equal force to misdemeanor informations.

As with an indictment in a felony prosecution, or a petition in a Family Court juvenile delinquency matter, an information is the "instrument of ultimate prosecution" in a misdemeanor case and, like an indictment or Family Court delinquency petition, must be premised on a showing of a legally sufficient, or "prima facie," case against the defendant. (Alejandro, supra, 70 N.Y.2d at 138-139, 517 N.Y.S.2d 927, 511 N.E.2d 71; Rodney J., supra, 108 A.D.2d at 310, 489 N.Y.S.2d 160; see also, Family Court Act, Section 311.2). As such, this court can conceive of no justification in law or logic for requiring the corroboration of a defendant's otherwise unsupported confession for Grand Jury indictments and juvenile delinquency petitions, while dispensing with this requirement for misdemeanor informations (see, Alvarez, supra, at 691, 534 N.Y.S.2d at 94).

In reaching the conclusion that CPL Section 60.50 applies as well to misdemeanor informations, the court recognizes that CPL Section 190.65(1) was specifically amended in 1983 to incorporate this corroboration requirement into the "legally sufficient evidence" standard required for a Grand Jury indictment, and that this 1983 amendment was intended to settle an ongoing conflict among the appellate courts as to whether such corroboration should be required at this earlier, accusatory, stage of felony prosecutions. (Bellacosa, Supplementary Practice Commentary, McKinney's Cons. Laws of N.Y., 1989 Pocket Part to Book 11(A), CPL 190.65(1), p. 84).

Notably, no corresponding change was made in the analogous CPL Section 100.40(1)(c) requirement that an information contain legally sufficient, or "prima facie," evidence of a defendant's commission of the crime charged (see, CPL Sections 100.40(1)(c), 70.10(1); see also Alejandro, supra, 70 N.Y.2d at 139, 517 N.Y.S.2d 927, 511 N.E.2d 71). In view, however, of the subsequent determination by the Court of Appeals that the "legally sufficient evidence" standard for informations is of jurisdictional import (Alejandro, supra), and in light of the First Department's recent ruling in Rodney J., supra, this court is satisfied that the failure of the legislature to expressly incorporate the "confession corroboration rule" into the CPL Section 100.40(1)(c) sufficiency requirements for informations was more an oversight than a deliberate attempt to create two separate standards of "legally sufficient" proof, one for felonies and another for misdemeanors. (see, Alvarez, supra, at 691, 534 N.Y.S.2d at 94; see also, CPL Section 70.10(1)).

Having determined that the "confession corroboration rule," as embodied by CPL Section 60.50, is to be applied in assessing the sufficiency of a misdemeanor information, the court must now decide whether the information herein contains sufficient proof, in addition to defendant's own admission, "that the offense charged has been committed." (CPL Section 60.50).

Put simply, CPL Section 60.50 requires proof, in addition to a defendant's admission, of the "corpus delicti" of the crime charged so as to "obviate the 'danger that a crime may be confessed when no such crime in any degree has been committed by any one.' " (People v. Murray, 40 N.Y.2d 327, 331-332, 386 N.Y.S.2d 691, 353 N.E.2d 605 (quoting People v. Lytton, 257 N.Y. 310, 314, 178 N.E. 290); see also, People v. Reade, 13 N.Y.2d 42, 45, 241 N.Y.S.2d 829 191 N.E.2d 891). Among the statutes requiring corroboration of a defendant's or witness' admissions or testimony, CPL Section 60.50 "appears to be the tiniest corroboration requirement known, and it takes very little to satisfy it." (Bellacosa, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL Section 60.50, p. 678; People v. Groff, 71 N.Y.2d 101, 107-109, 524 N.Y.S.2d 13, 518 N.E.2d 908).

In this regard, "[e]vidence in addition to the confession is ... sufficient 'even though it fails to exclude every reasonable hypothesis save that of guilt.' " (People v. Lipsky, 57 N.Y.2d 560, 570-571, 457 N.Y.S.2d 451, 443 N.E.2d 925, rearg. den., 58 N.Y.2d 824, 459 N.Y.S.2d 1031, 445 N.E.2d 657 (quoting People v. Cuozzo, 292 N.Y. 85, 92, 54 N.E.2d 20))....